What is the test for a district attorney's "veto" power to prevent a trial court from striking a criminal charge for sentencing?

California, United States of America


The following excerpt is from Davis v. Municipal Court, 249 Cal.Rptr. 300, 46 Cal.3d 64, 757 P. 2d 11 (Cal. 1988):

We begin with the seminal decision in Tenorio, supra, 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993. In Tenorio, the court addressed a statutory provision which gave the district attorney the power to preclude a trial court from exercising its long established discretion, under Penal Code section 1385, to strike a prior offense [46 Cal.3d 83] for the purposes of sentencing. (See, e.g., People v. Burke (1956) 47 Cal.2d 45, 50-51, 301 P.2d 2410.) In that setting, in which the district attorney's "veto" power was exercised at the sentencing phase of the criminal proceeding, well after the filing of the charges, the Tenorio court concluded that the district attorney's exercise of such a veto improperly compromised the judicial function and violated the separation-of-powers doctrine. The court explained: "The judicial power is compromised when a judge, who believes that a charge should be dismissed in the interests of justice, wishes to exercise the power to dismiss but finds that before he may do so he must bargain with the prosecutor. The judicial power must be independent, and a judge should never be required to pay for its exercise." (3 Cal.3d at p. 94, 89 Cal.Rptr. 249, 473 P.2d 993.)

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